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Wednesday, 21 April 1999
Page: 3957

Senator IAN CAMPBELL (9:35 AM) —I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows


The Broadcasting Services Amendment (Online Services) Bill 1999 (the bill) will enact a regime which balances the need for the government to meet legitimate community concerns about the publication of illegal and offensive material online, that is commensurate with the regulation of conventional media, while ensuring that regulation does not place onerous or unjustifiable burdens on industry and inhibit the development of the online economy.

The main elements of the proposed framework are that:

. a complaints mechanism will be established under which any person can complain to the Australian Broadcasting Authority (ABA) about offensive material online;

. material that will trigger action by the ABA will be defined, on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures;

. the ABA will be given powers to issue notices to service providers aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or, if the material is sourced overseas, to take reasonable steps to prevent access if technically feasible;

. indemnities will be provided for service providers to protect them from litigation by customers affected by ABA notices;

. a graduated scale of sanctions against service providers breaching ABA notices or the legislation will apply;

. the framework will not apply to private or restricted distribution communications such as Intranets or communications not in a stored form; however, current provisions of the Crimes Act 1914 (Cth) in relation to offensive or harassing use of a telecommunications service will apply in this context;

. a community advisory body will be established to monitor material, operate a `hotline' to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content;

. the Commonwealth will be responsible for regulating the activities of Internet service providers (ISPs) and Internet content hosts (ICHs) and the Attorney-General will encourage the development of uniform State and Territory offence provisions complementing the Commonwealth legislation (including section 85ZE of the Crimes Act) that create offences for the publication and transmission of prohibited material by users and content creators.

The use of online services is growing rapidly in Australia. There are now over 650 online service providers providing access to the Internet and other online services. The ABS estimates that more that 3.6 million Australians have accessed the Internet at some time. It is clear that the information accessed through this medium is increasingly influential in the community.

The online industry consists of a number of participants. ISPs, who are a type of carriage service provider under the Telecommunications Act 1997, essentially offer access to the Internet and for some this is their only role. Other online service providers offer a range of additional services to clients such as e-mail, file transfer services, network "news" groups and telephony. They may also offer clients world wide web services in which clients' web sites are hosted on the service providers computer systems and are accessible to other users through the Internet and caching services in which sites overseas are mirrored on their service to facilitate speed of access in Australia. ICHs host content for third parties which is available through the Internet but do not provide Internet connectivity to their customers. ISPs and ICHs are generally not aware of the content of the material which is either accessed through, or hosted on, their services unless it is brought to their attention. Often, but not always, ISP and ICH services are provided by the same person.

At the end-user level, there are users who access information on the Internet through a service provider and content providers who publish content such as world wide web pages to be accessed by other Internet users, often by putting web pages onto and ICH's hosting computer systems. In a stored form, end-users should be responsible for this content.

Concern has been expressed both within the community and at government level about the nature of material that may be accessed by means of online services, specifically in relation to the perceived ease of access to material that is either illegal, pornographic or unsuitable for children.

Some State and Territory jurisdictions (Western Australia, Victoria and the Northern Territory) have already enacted offence provisions in relation to content transmitted, accessed or published by means of an online service. The Commonwealth is concerned at the possible regulatory fragmentation of differing State/Territory legislation and the possible adverse effect on the development of the online industry. A further difficulty with some current State/Territory legislation is that it places a degree of prima facie responsibility on service providers for the content transmitted through their service in that the onus is on service providers to prove relevant statutory defences to a Court in relation to alleged offences with the subsequent costs and uncertainty this would create.

The bill is intended as part of a multifaceted approach to ensure a uniform national approach to online content regulation with the objectives of:

. providing a means for addressing certain complaints about Internet content;

. restricting access to certain Internet content that is likely to cause offence to a reasonable adult; and

. protecting children from exposure to Internet content that is unsuitable for children.

The bill amends the Broadcasting Services Act 1992 (BSA) to provide for the regulation of ISPs and ICHs. Schedule 2 to the bill makes a consequential amendment to the Crimes Act 1914. It will introduce a regulatory framework for ISPs and ICHs and forms part of a two tiered approach to online content regulation in which it is anticipated that the States and Territories will enact complementary legislation creating offences for the publication and transmission of objectionable material by end-users.

In relation to proposed uniform State and Territory offence provisions, it is the intention that service providers not be liable for content hosted on, or accessed by means of, a service provider's system where the service provider is not responsible for the creation of the content, or has not committed a "positive act" in relation to that content. The proposed State and Territory legislation will supersede online services specific legislation currently in place in Victoria, Western Australia and the Northern Territory.

For the Commonwealth's part in the national regulatory framework, the bill will ensure that ISPs and ICHs are not held liable for content of which they are not aware. However, a complaints mechanism will be established in which any person can complain to the ABA about offensive material online and the ABA will be given powers to issue notices to ISPs and ICHs aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or, if the content is sourced overseas, to take reasonable steps to prevent access if technically feasible.

Prohibited content, that will trigger action by the ABA, is defined in the bill on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures.

The bill provides for a classification procedure for Internet content that is separate to that applying to conventional media in the Classification (Publications, Films and Computer Games) Act 1995. This is on the basis that the Classification act may not encompass all forms of Internet content. The Classification Board will however be required to classify Internet content subject to complaint in a way that corresponds to the way in which a film would be classified under the Classification act, that is, in relation to the classification criteria that apply in relation to RC, X and R classifications.

Internet content is defined as information that is stored and that is accessible to the public. Restricted access systems such as Intranets are excluded. Ephemeral content, such as newsgroups, chat rooms and real time services such as streaming video and audio, is also excluded, except to the extent that they are stored or archived, given that it would not be possible to classify "live" material. However, this content will continue to be subject to s.85ZE of the Crimes act that provides for an offence for the knowing or reckless use of a carriage service in a manner which would cause offence to a reasonable adult in all the circumstances. The bill amends the Crimes act to put its application in this regard beyond doubt.

There is no specific exclusion of e-mail in a stored form. This reflects the difficulty of defining one-to-one e-mail separately from e-mail with wider distribution. However, for practical purposes one-to-one e-mail is highly unlikely to come to the attention of the ABA in practice because of the private and usually password protected nature of the communication. In the unlikely event of a compliant about a private e-mail, the only action the ABA could take would be to order it taken down.


The cornerstone of the regulatory framework is the complaints mechanism in Part 4 of the bill. This will allow the ABA to take timely action to investigate complaints from the public and notify ISPs to prevent access to prohibited content. The bill provides that complaints can be made by Australian residents about prohibited content carried or hosted by ISPs and ICHs and breaches of industry codes, industry standards and online provider rules directly to the ABA.

A process for direct complaints to the ABA recognises that material subject to a complaint will not generally be originated by the ISP or ICH and that it would be unreasonable to expect them to adjudicate complaints about material for which they are not responsible or make judgements about whether particular material is prohibited. It will provide certainty for the industry in that their responsibilities in relation to complaints will be limited to complying with ABA notices to prevent access to content.

Complaints will not be able to be made about something that occurs before 1 January 2000. This is intended to afford ISPs and ICHs an opportunity to put arrangements in place to enable them to avoid contravening the regulatory regime proposed in the bill and to enable the ABA to ensure that it is in a position to deal with complaints.

Persons making complaints in good faith or giving information to the ABA in connection with an investigation of a complaint will be immune from civil proceedings (such as proceedings for breach of contract in relation to the disclosure of a password or proceedings for defamation).

The bill requires the ABA to investigate all complaints unless it is satisfied that the complaint is frivolous, vexatious or not made in good faith or has reason to believe that the complaint was made for the purpose of frustrating or undermining the effective administration of the proposed regulatory framework. However, in cases of extreme concern, for example paedophiles circulating illegal material online or the enticement or exploitation of children for illegal purposes through the use of online services, it is possible that a police investigation may be concurrent with a complaint to the ABA about particular material. The public nature of the ABA complaints and investigation process proposed in the bill could prejudice a police investigation in these circumstances. As a safeguard, therefore, the bill gives the ABA a discretion to defer action where a member of the Federal, State or Territory police satisfies the ABA that an investigation should be deferred for a specified period.

The ABA will be able to initiate investigations on its own initiative. It is not intended that this discretion will be used by the ABA to monitor content actively. It will instead provide a mechanism to allow the ABA to investigate matters where, for example, information about particular Internet content or the conduct of an ISP or ICH is drawn to its attention by a source other than a complaint from the public. For example, an additional function of the ABA under the bill will be to liaise with regulatory and other relevant bodies overseas, such as police authorities and `hotline' complaints services like the UK Internet Watch Foundation about co-operative arrangements for the Internet industry. Arrangements could include information sharing arrangements and the ABA will therefore need to be able to act on any such information received. This discretion will also improve the ABA's ability to deal with avoidance situations.

If in the course of an investigation, the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA will be required to give the relevant Internet content host a written notice directing the host not to host the prohibited content. This notice is called a final take-down notice and is intended to have ongoing effect. The ABA's decision will be based on a classification of the Classification Board.

If the ABA is satisfied that, if the Internet content were to be classified by the Classification Board, there is a substantial likelihood that the Internet content would be classified RC or X, the ABA will be required to give the relevant Internet content host an interim take-down notice directing the host not to host the Internet content until the ABA notifies the host of the Classification Board's classification of the Internet content and request the Classification Board to classify the Internet content.

Interim take-down notices have been limited to RC and X-rated content rather than R-rated content (without adult verification) because of the generally less serious nature of R-rated material. If interim take-down notices were to apply to R-rated material, this would be likely to increase greatly the ABA's administrative costs under the existing classification scheme in which the Classification Board charges fees on a cost recovery basis. It would also increase industry's compliance costs. However, the ABA must seek a classification from the Classification Board for R-rated material.

The ABA will be able to revoke notices if, for example, the relevant content is reclassified.

As an anti-avoidance measure, the bill provides that the ABA will be able to make take-down notices directing ISPs and ICHs to prevent access to content that is substantially similar to content specified in a previous interim or final take-down notice where the ABA is satisfied that this similar content is or would be prohibited. This addresses the scenario in which there is avoidance of a notice to an ISP or ICH to take-down prohibited content through modification of the content so that the description of the content in the notice is no longer enforceable. The ease with which online content can be modified (or moved or disguised) compared to conventional content makes this scenario a serious possible impediment to effective enforcement of the regulatory framework. It would also add to regulatory costs because, where the ABA identified content modified so as to avoid the effect of a take-down notice, it would then need to initiate the process required to institute a new take-down notice in relation to the modified content, including seeking a new classification from the Classification Board. The use of the term `substantially similar' is intended to convey the idea that the content must be similar in substance to content about which the Classification Board's notice expressed concerns. For example, if a picture hosted on a web site were classified because a particular part or aspect of the picture was offensive, then the ABA's focus in using this provision would be on whether that concern about the picture had been addressed.

In relation to investigation of complaints about Internet content hosted overseas determined to be prohibited content or potential prohibited content, the ABA will be required to notify Australian police authorities if the ABA considers the content is of a sufficiently serious nature. The ABA will be able to notify overseas regulatory and other bodies directly, such as hot line services, if it is authorised to do so under arrangements with Australian police.

If an industry code or industry standard deals with procedures which Internet service providers will follow in dealing with overseas hosted Internet content notified by the ABA, the ABA must also notify the content to Internet service providers. As a transitional default provision, the bill provides that if there is no code or standard dealing with procedures in relation to notified overseas hosted content, the ABA must give each Internet service provider known to the ABA a written notice directing the provider to take all reasonable steps to prevent end-users from accessing the content. In determining whether particular steps are reasonable for this purpose, the ABA will be required to have regard of to the regulatory policy of the bill set out in clause 4, particularly that regulation should be in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on ISPs and ICHs. The government does not propose to mandate any particular technological solutions to filtering overseas sourced material.

ISPs and ICHs will be protected from civil proceedings (for example breach of contract or defamation) in relation to actions taken to comply with ABA notices.


Within this overarching complaints mechanism to deal directly with prohibited content, the bill takes a co-regulatory approach in which three interdependent levels of regulation apply. The government considers that this approach will best utilise industry expertise in the development of workable and practical codes of practice, with which compliance is more likely, while ensuring there is a legal framework to deal with any irresponsible industry behaviour. Therefore, the first level of regulation is self-regulatory in which the industry will have the opportunity to develop its own procedures in codes of practice that are responsive to community concerns and assist members of the community to manage their, and their children's use, of the Internet. At the second level, the ABA will be able to intervene by directing compliance with industry codes or, if necessary, determining standards in relation to matters that would be dealt with by codes where codes of practice are not developed by the industry or are deficient or fail. At the third level, generic service provider rules will apply to the whole industry and will underpin compliance and enforcement of the regulatory framework, including the complaints mechanism.

Codes of Practice

In relation to industry codes of practice, ISPs and ICHs will each be expected to develop a single code dealing with matters specified in clause 56 of the bill such as procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult, procedures to be followed in order to assist parents and responsible adults to supervise and control children's access to Internet content and the procedures to be followed in order to inform producers of Internet content about their legal responsibilities in relation to that content. The Codes specifically exclude matters that are covered codes of practice developed under other relevant legislation, such as the Telecommunications act. However, there is no impediment to these other matters being dealt with in a single document, as long as the document makes clear which "module" deals with the requirements of specified legislation and the regulatory body which has registered that module.

ISPs will also be expected to develop a code setting procedures to be followed in dealing with overseas hosted Internet content notified to them by the ABA, for example, procedures to be followed by a particular class of Internet service providers for the filtering, by technical means, of such content. This code must also set out the means by which the ABA will been taken to have notified ISPs, given that since the notified overseas content will be accessible through all ISPs in Australia, it may be necessary to have a well-understood procedure for notification at a single point, for example, a secure web site.

In this respect, it is important to emphasis that the bill does not mandate any particular technological solutions to filtering notified overseas sourced material. Rather, it gives ISPs the opportunity to develop their own procedures to follow to prevent access to sites which the ABA considers would be regarded as highly objectionable or illegal (RC or X) under Australian classification standards. These procedures would take account of technical limitations and cost considerations. However, if the industry is unable or unwilling to develop such procedures itself, or if the procedures are deficient, the ABA will have the ability to make a mandatory industry standard. The minister will also have the ability to direct the ABA to determine an industry standard if an ABA request to a relevant industry body or association to make an industry code is not complied with.

Codes will be registered by the ABA if it is satisfied that the code provides appropriate community safeguards, there has been adequate industry and public consultation and a body designated by the minister has been consulted in the development of the code. This latter body will be a community advisory body to be established, which will also monitor material, operate a `hotline' to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content.

The bill provides for a formal trigger for the development of an industry code through the power of the ABA to request a body or association representing a section of the industry to develop a code that would apply to participants of the section dealing with one or more specified matters. The ABA will not be permitted to make such a request unless it is satisfied that the development of the code is necessary or convenient to provide appropriate community safeguards and it is unlikely that an industry code would be developed within a reasonable period without such a request.

ABA standards

The bill intends that the next level of regulation, ABA standards, will come into play where an industry code is not in place, is deficient or has partially or wholly failed or the ABA has requested an industry body to develop a code and it has failed to do so. Standards must relate to the same criteria as specified in the bill for codes of practice. The intention is that an industry section has had an appropriate opportunity to develop its own procedures in this regard through the development of a code before regulatory intervention by the ABA. Standards will be disallowable instruments and the minister will be able to give the ABA directions as to the exercise of its standard making powers.

Before determining a standard must seek public comment on a draft of the standard and consult with the community body to be established by the minister. The ABA is to maintain a public register of both codes and standards to provide industry and the public with ready information about codes and standards in force.

While the bill will commence upon Royal Assent, as a transitional measure, the bill recognises that development of industry codes of practice (or ABA standards if a code is not developed by the industry) require lead time. While some industry groups are well advanced in code development, these codes will need substantial modification to meet the requirements of the bill. This is particularly the case in relation to the requirement that a code is developed for procedures to be followed for notified overseas hosted content. It is therefore proposed to treat codes for procedures for overseas hosted content separately.

The bill requires the ABA to make reasonable efforts to ensure that either an industry code is registered by 1 January 2000 or, if a code is not registered, an ABA standard is in place by 31 March 2000. The later date for possible determination of an ABA standard is intended to reflect the co-regulatory intent of the bill in which industry is given to opportunity to develop its own procedures before any regulatory intervention by the ABA.

In relation to notified overseas-hosted content, the bill provides that a separate industry code is to be developed, but that until such a code is registered, ISPs will be required in the legislation to take all reasonable steps to prevent access to it. The broad nature of this requirement pending registration of a code and the possible consequent uncertainty of interpretation is intended to encourage industry to develop detailed procedures in a code for overseas hosted content quickly.

Online service provider rules

At the final level of regulation in the framework, the bill sets out online service provider rules applying to all ISPs and ICHs. These require:

an ICH to comply with any interim take-down notice, final take-down notice or special take-down notice that applies to the host as soon as practicable, and in any event within 24 hours, after the notice was given to the host;

an ICH to comply with an undertaking given to, and accepted by, the ABA in relation to content subject to an interim notice that the ICH has ceased to host or prevented access to on an ongoing basis prior to a classification by the Classification Board;

an ISP to comply with any standard access-prevention notice in relation to overseas hosted content or any special access-prevention notice in relation to notified material that has been modified to avoid the effect of a notice that applies to the provider as soon as practicable, and in any event within 24 hours, after the notice was given to the provider;

a participant in a particular section of the Internet industry that has contravened, or is contravening, a relevant registered industry code to comply with any ABA direction to comply with the code;

participants in a particular section of the Internet industry to comply with any ABA standard; and

compliance by ISPs and ICHs with any online service provider rules determined by the ABA.

Enforcement and sanctions

The bill includes a graduated range of enforcement mechanisms and sanctions that are intended to allow flexibility in dealing with breaches depending on the seriousness of the circumstances.

Codes of practice developed by the industry can be expected to include compliance mechanisms, such as withdrawal of industry association rights or privileges, and compliance incentives, such as the right to display compliance symbols, administered by the relevant oversighting industry body. Such mechanisms will need to be approved by the ABA through the code registration process.

At the second level, in relation to breaches of codes, standards and rules, the ABA will be able to make formal warnings to indicate its concerns before taking other action. This might be appropriate where a beach for example was inadvertent or there were other extenuating circumstances.

At the next level, the ABA will be able to take intermediate action, for example, directing an ISP or ICH to comply with a code of practice. Failure to comply with this or failure to comply with a take-down notice arising from an ABA investigation could lead to more serious sanctions. Contravention of online service provider rules (which require ISPs and ICHs to comply with ABA notices and directions) will be a criminal offence and a continuing offence for each day the contravention continues. Penalties are $5,500 for an individual and $27,500 for a corporation.

In cases of serious, flagrant or recurring breaches of online service provider rules, the ABA will be able to apply to the Federal Court for an order that an ISP cease providing a service or an ICH cease hosting content. This is intended as an extreme last resort measure which it could be expected would be rarely, if ever, required.

State and Territory legislation

As noted above, proposed Internet specific State and Territory legislation will apply to ISPs and ICHs only to the extent that they act as content creators. Clause 87 of the bill gives effect to this principle so that State and Territory legislation or a rule of common law or equity will have no effect to the extent to which it subjects an ICH or ISP to civil or criminal liability in respect of hosting or carrying content in a case where the host or provider was not aware of the nature of the Internet content or requires an ICH or ISP to make inquiries about, or keep records of, Internet content hosted by the host or carried by the provider. The minister will also have a power to exempt a State or Territory law from the operation of this provision and to declare that a specified State or Territory law has no effect to the extent to which the law has an effect on an ISP or ICH. This is intended to allow the fine tuning of the limitation of ISP and ICH liability under State and Territory laws.

However, the bill also ensures, that other than in respect of this limitation in relation to ICHs and ISPs, State and Territory laws, such as laws of general application like crimes and censorship legislation, operate concurrently with the bill. The amendment of the Commonwealth Crimes Act in Schedule 2 of the bill also make it clear that it is not intended to limit or exclude the concurrent operation of any law of a State or Territory.


The government acknowledges that the unique characteristics and rapidly changing nature of the Internet present specific difficulties for regulation of Internet content. It recognises that there are technical difficulties with blocking all illegal and offensive material that is hosted overseas but considers that where it is technically feasible and cost effective to block material this should be done. It is not acceptable to make no attempt at all on the basis that it may be difficult. Nor is it acceptable that community standards applicable to conventional media do not apply to the Internet—what is illegal or controlled offline should also be illegal or controlled online.

Recognising these difficulties, the government's approach does not rely on regulation alone. The government, along with the community advisory body and its hotline service, will be encouraging parents and educators to become better aware of means and tools to manage the use of online services by minors. It will also encourage the development of content labelling by Australian content creators and development of labelling standards and encourage service providers to offer a choice for consumers to subscribe to services that allow access to a cache of permitted material only or services that are filtered by the service provider on a best efforts basis. The government will also actively pursue collaborative arrangements internationally in relation to online content codes of practice and online labelling of content. The ABA and the community advisory body will also be encouraged to develop information sharing and other collaborative arrangements with equivalent bodies overseas.

As part of this multifaceted approach, the bill will ensure that there is regulatory means to assist with the control of Internet content that is illegal or harmful to children. It does not attempt to place primary onus on ISPs and ICHs who are not responsible for content, gives them certainty in relation to action to be taken when made aware of prohibited content and encourages the industry to develop its own procedures responsive to the community.

The government is confident that the bill, and its overall approach to assist individuals to manage their, and their children's use of the Internet strikes the right balance between ensuring industry development is not stifled by overzealous laws or inconsistent or unpredictable regimes or which result in Australia's economic marginalisation, while also responding to the needs and interests of the community.


This bill makes a number of changes to the Copyright Act 1968 which are of great importance to the development of the information economy in Australia. The changes will promote open systems, or "interoperability" of computer programs and products, and facilitate error-correction and more effective security of computer systems.

The information economy arises from the revolutionary new opportunities for storage, transmission and accessing information made possible by digital technology. The digitising of information is entirely dependent on processing by computers. Computers consist of the software or computer programs for the various digital processes and the computer hardware by which people can manipulate the programs. Even in that very generalised description, the vital role of computer programs in the whole of the new information economy can be easily perceived.

With the enormous proliferation of computers and computer technology and the networks connecting them, notably the Internet, there is an obvious need for computers and the programs which drive them to communicate, connect or "interoperate" with each other. When making a new program to interoperate with existing programs, a software developer needs certain information—called "interface specifications"—relating to these existing programs. Often the makers of widely-used programs have made the interface information available in the interests of interoperability. However, sometimes they have not.

Computer programs are a form of intellectual property protected by copyright. Since 1984, the Copyright Act has explicitly protected computer programs as literary works, whether they be in human-readable language, called "source code", or in machine-readable language, called "object code", which is the usual form in which they are sold or supplied to users. However, unlike most, if not all, other literary works, computer programs in machine-readable form cannot be rendered in human-readable form without making a copy. The making of a copy of a copyright work without the copyright owner's permission is an infringement of copyright.

If one wants to write a literary work to complement an existing work, for instance, a learned commentary on a popular novel, one is free to read the novel in order to write that commentary, without infringing the rights of the owner of copyright in the novel. However, one cannot learn how a computer program in machine-readable form works without access to a version in human-readable form, or source code. To render the machine code into the equivalent of source code, it is necessary to employ a process called "decompilation", which involves the production of a copy of the program.

By refusing to make available information about a computer program's interfaces with other programs with which it interoperates, the owner of copyright in a successful program can control the market in products that are interoperable with the program. Only if the maker of a new product were permitted to find out the interface information by decompilation can that maker achieve interoperability of the new program with the existing program.

The law of the leading software producing country in the world, the United States, allows makers of new programs to use decompilation to find out the interface information of existing programs for achieving interoperability. The countries of the European Union, and other European countries, also allow this to be done. However, Australian law does not make such provision.

The present situation, therefore, is that Australian law is more restrictive of the activities of new software developers than the law of the leading industrialised countries where most of the world's software is being produced. Australia's software producers are recognised as innovative by world standards. Because our industry is not of a scale to compete across the board with such dominant industries as that of the United States, its comparative advantage lies in the ability to cater for niche markets. In order to do this, it must be able to ensure that its successful niche products interoperate with other existing products, including those produced by the big scale producers.

Against that background, I come now to the main reform in the bill. If Australian industry is to be allowed to compete on level terms with producers of similar products in the USA and Europe, Australian software copyright law must be brought more into line with the law in those countries. Accordingly, as an exception to the copyright reproduction right, where interface information about other programs is not readily available to a software producer, the producer will now be able to decompile another program to the extent necessary to get the required interface information for making an interoperable product.

The government recognises that commercially successful computer programs can involve very extensive expenditure on research and development, and accepts that appropriate protection via the copyright law should be afforded this investment. Accordingly, the change to allow decompilation in the circumstances I have described will ensure that only interface information may be discovered, and that this information may be used only for the purpose of making an interoperable product.

This limited sanctioning of decompilation will not weaken the existing proscription of software piracy. The most saleable pirate product is one that is practically indistinguishable from, and functions identically to, the genuine article. To make such a pirate product, one would not decompile the original, but would simply copy it straight onto a disk.

In approving these amendments, the government had the benefit of very comprehensive consideration and research going back a number of years and extensive consultations with the software industry. The amendments are based on recommendations contained in a very thorough report by the Copyright Law Review Committee of this government. Because Australia has extensive international obligations in regard to copyright through membership of the World Trade Organisation and other international treaties, careful consideration has also been given to ensuring that the amendments are compatible with those obligations.

The bill will also make two other amendments to software copyright law that are very necessary and important for the sound and secure development of the information economy. One of these amendments will allow the use of the decompilation process for the correction of errors in a program where an error-free copy of the program is not reasonably available at a commercial price. Where, because of the Year 2000 date problem, a copy of a program will not function beyond the end of this year, although it was intended to by the producer, decompilation will be able to be undertaken to correct the problem if an error-free version is not reasonably available, as already indicated. This is another element of the government's decisive action to facilitate the combating of the Y2K problem.

The other amendment will permit decompilation, where necessary, to test the security of a computer program or of a network of which it is part, against unauthorised access to the program or network and against sabotage—for example, by viruses. The disruption caused by the Melissa virus infecting e-mail systems in Australia and other countries recently is a timely warning of this danger. With our growing dependence on computer networks, the need is correspondingly greater for effective security against unauthorised penetration and sabotage—and all the damage and invasion of privacy that they can cause. Again, the permitted decompilation could only be undertaken if the required information for security testing was not already available, and only to the extent necessary to obtain the information. In the case of both error-correction and security testing, the information gained from permitted decompilation may be used only for the purposes for which the decompilation was undertaken.

Madam President, any exceptions to the basic copyright right to control reproduction of a copyright work must be justifiable, must not harm the economic interests of the copyright owner and must be compatible with our international obligations. I have shown that the three very specific cases in which decompilation will be allowed are of fundamental importance to the well-being of the software industry and users of software. The exceptions will in no way make the practice of piracy any easier in Australia, for the simple reason that the changes will not relax in any way the civil or criminal liability of those who engage in piracy. The government believes that, by bringing Australian law essentially into line with the law in the USA and European countries, not to mention other countries in the world, the amendments comply with our international obligations in regard to copyright protection.

These are the main amendments contained in the bill. The other amendments implement more technical changes to the protection of computer programs that were recommended in the report of the Copyright Law Review Committee to which I have referred. One amendment confirms that, where the conditions of purchase of a computer program do not specifically provide, the technical generation of a copy of the program in the course of running it for normal use will not infringe copyright in the program. Likewise, the generation of such a temporary copy while running the program in the course of studying its operation will not infringe copyright. The existing provisions of the act permitting the making of a reserve—or back-up—copy against possible destruction of a program have been modified, to make them accord with current practice in the backing-up of computers and computer systems.

In further recognition of the critical importance of addressing the Y2K problem, when announcing approval of the amendments on 23 February last the government indicated that the amendment to allow decompilation of computer programs to correct errors would, when enacted, operate as from the date of the announcement. The relevant provision of the bill provides accordingly.

One other important provision in the bill will nullify any agreement that purports to exclude the right to run a program in order to study it, the right to make back-up copies or the right to decompile a program for interoperability, for error-correction and for security testing. However, a back-up copy will not be able to be made if it would involve circumventing a "lock" on a computer program incorporated by the producer to prevent such copies being made.

Madam President, computer software is the cornerstone of the new communications systems. It is also essential to just about every other element of modern infrastructure, production and services. It is important that the intellectual property in computer programs be adequately protected. With one of the lowest rates of software piracy in the world, Australia has demonstrated its commitment to doing so. However, protection must not be at the cost of reasonable access akin to what users of other copyright materials enjoy. The main amendments in this bill will allow access to source-code equivalent in circumstances in which software engineers in many other software-producing countries already enjoy it. The changes will contribute to competitive development of new software and hardware products, intensifying action against the Y2K bug and increasing the security of systems against viruses and hacking—all indisputably desirable objectives. The amendments will give not one crumb of comfort to software pirates.

I commend the bill to the Senate.


On 6 April 1999 the Prime Minister announced the government's decision to provide temporary safe haven to 4,000 persons displaced from the Kosovo region of the Republic of Yugoslavia. This was in response to a global appeal by the United Nations High Commissioner for Refugees for countries beyond the immediate region to make an exception and provide emergency shelter to Kosovo Albanians forcibly displaced from Kosovo. The appeal was made to ease the immediate crisis of having over half a million Kosovars forced into neighbouring states. Honourable Senators would agree that the events in Kosovo are a terrible human tragedy.

The Commonwealth and State governments and various organisations throughout Australia have moved swiftly to put safe haven arrangements in place. These arrangements include the positioning of a task force of immigration officers, medical personnel, interpreters, and an information technology expert in the Former Yugoslav Republic of Macedonia. Members of the task force are providing valuable assistance to UNHCR and other agencies working in the area. In Australia, defence establishments have been prepared to receive displaced persons and a range of Federal and State agencies are co-operating to provide for the needs of safe haven recipients.

I should also mention that there has been a tremendous response from both individuals and businesses throughout Australia offering assistance.

The UNHCR subsequently called for a pause of the immediate uplift of persons for temporary protection to countries a considerable distance from Kosovo, while UNHCR re-examined the options available for temporary protection closer to the region.

Australia remains committed to its promise and is ready to implement the uplift at short notice if required. With this bill the government is putting in place the legal framework to respond immediate ly, if and when UNHCR re-activates its request to assist in a temporary protection capacity.

This bill is an integral part of the larger scale co-operative effort between federal government agencies; between the federal government and state/territory governments; and between all of levels of government and NGOs, to put in place the infrastructure and assistance to help Kosovo Albanians who are to be provided with emergency temporary relief. Together with changes made to the Migration Regulations on 15 April 1999, it will provide the statutory framework for the effective management and return of persons to whom temporary safe haven is provided.

This short term humanitarian measure will assist in alleviating the massive suffering and human tragedy that has developed in Kosovo. This is in addition to our commitment to work with UNHCR to assist through permanent resettlement those people who may not be able to return to Kosovo. The emergency temporary protection we are offering with the safe haven is another example of Australia's proven commitment to upholding its international reputation in contributing in the spirit of international burden sharing.

The bill amends the Migration Act 1958 to ensure that persons to whom temporary safe haven is provided are unable to apply for any other form of visa, including protection visas, while in Australia. Any applications made by such persons for other types of visas from 6 April 1999 will be rendered invalid. This will ensure that the government can meet its commitment to provide temporary safe haven and also effectively maintain the integrity of Australia's migration and humanitarian programs. Temporary safe haven is not to be used as a means of obtaining permanent residence in Australia.

However, the bill will provide the minister with a non-compellable power to allow a particular non-citizen who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, to make a valid visa application for another type of visa. This will only be exercised where the minister believes it is in the public interest to do so in exceptional circumstances on a case by case basis. This power may only be exercised by the minister personally.

As temporary safe haven is to be provided to persons at short notice and in situations where extensive character checking is not possible, it is necessary to have effective powers to withdraw temporary safe haven which has been provided to any person who represents a danger to the Australian community, or Australia's security or whose presence in Australia would be harmful to Australia's international relations. This power is exercisable only by the minister personally, and allows the minister to refuse to grant, or to cancel a visa without prior notice. Where the minister uses this power, the minister must table a statement about its use in both houses of the Parliament.

Any decision to refuse to grant or to cancel a temporary safe haven visa under this special power will automatically apply to members of the immediate family of that person.

I reiterate that it remains the government's intention to provide a temporary safe haven in Australia for 4000 Kosovo Albanians. The arrangements that have been made to date demonstrate our commitment to join with other members of the international community to assist in this humanitarian crisis by providing emergency temporary relief. Passage of the bill without delay is essential to enable Australia to grant this relief, while also maintaining the effective management and control of Australia's immigration and entry requirements.

I commend the bill to the Senate.

Ordered that further consideration of the second reading of these bills be adjourned till the first day of the winter sittings 1999, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.